June 27, 2008
ERNEST G. IANETTI, PLAINTIFF-APPELLANT,
CAREY A. DONOVAN (F/K/A IANETTI), DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-813-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2008
Before Judges Sapp-Peterson and Messano.
In this post-judgment matrimonial matter, plaintiff Ernest G. Ianetti appeals from an order dated February 16, 2007, directing him to pay $1,000 in counsel fees to his former spouse, defendant Carey A. Donovan. Plaintiff contends the motion judge erred in granting defendant an award of counsel fees without setting forth his reasons for the relief granted and without affording oral argument after having initially granted oral argument. Plaintiff further contends that counsel fees may not be awarded as a sanction or to enjoin prospective litigation. We reverse.
The parties were divorced on June 26, 1998, and since that time have been embroiled in continuous litigation related to parenting and child support issues for their two minor children born of the marriage. On October 19, 2006, plaintiff filed a motion to quash a subpoena and to enforce an order entered by the court on November 1, 2002. Defendant cross-moved for an order enforcing litigant's rights related to her claim that plaintiff failed to provide insurance information as previously ordered by the court. Defendant's cross-motion was untimely and the court granted plaintiff's request for an extension of time in which to file a reply to defendant's motion until December 4, 2006. On December 1, 2006, three days before plaintiff's reply was due, the court entered orders on both motions without oral argument, although oral argument had been requested. Included in the relief granted to defendant was an award of $1,000 in counsel fees. In the statement of reasons attached to the order the court stated:
The Court has carefully considered the Defendant's request for counsel fees pursuant to the factors in [Rule] 5:3-5(c). The Court has awarded counsel fees in large part due to Plaintiff's non-compliance.
The Court has considered the request for oral argument. After a review of the papers submitted and after consideration of the procedural history of the case and after consideration of the applicable Court Rule, the Court in its discretion has determined that it does not need to conduct oral argument in order to decide the issues in contest.
When plaintiff wrote to the court and complained that the court had reached its decision without consideration of his reply papers, the court agreed to review plaintiff's reply papers, reconsider the motion, and directed the parties to contact the court for oral argument. In plaintiff's reply, he disputed defendant's allegations and attached exhibits which he claimed detailed his efforts to provide insurance information to defendant.
On January 12, 2007, the date set aside for reconsideration of the court's December 1, 2006 order, the motion judge's law clerk telephoned plaintiff to advise him that the court had concluded the motion issues were moot and requested that the parties attempt to resolve the matter through a consent order. The parties were unable to reach an agreement and the court was contacted by plaintiff's counsel with a request to re-list the motion and cross-motion for oral argument. By order dated February 16, 2007, the court once again ordered plaintiff to pay counsel fees to defendant totaling $1,000. The court reiterated in the order that it found that "there was non-compliance with a prior Court Order which occasioned the issuance of counsel fees[.]" The present appeal followed.
In matrimonial actions, the award of counsel fees is authorized both by statute and by rule. See N.J.S.A. 2A:34-23; see also R. 5:3-5(c); R. 1:10-3. The award of such fees "rests in the sound discretion of the trial judge." Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). An award of counsel fees is not subject to reversal unless it is "so wide of the mark as to constitute a mistaken exercise of discretion." Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999). Moreover, if the award is "deemed just," it may be awarded to one who is not necessarily the prevailing party on all issues. Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002).
Nonetheless, no award for counsel fees may be entered without the court setting forth the basis for its award by making specific findings of fact. See Curtis v. Finneran, 83 N.J. 563, 570 (1980) (discussing the trial court's responsibility to state findings of fact and conclusions of law); see also Rosenberg v. Bunce, 214 N.J. Super. 300, 304 (App. Div. 1986) (discussing the trial court's obligation to state findings of fact and legal conclusions relevant to a discretionary decision).
Here, because the trial court did not, in the first instance, make specific findings of fact to support the conclusion that plaintiff had violated a prior court order and thereafter set forth its consideration of the statutory factors and rules supporting the award of counsel fees, we are left to speculate about whether this exercise of discretion is founded on the evidence and the law or upon an arbitrary act. Curtis, supra, 83 N.J. at 570.
Further, the record reflects a genuinely disputed issue of fact as to whether plaintiff provided the insurance information in accordance with prior orders of the court. As such, we do not view defendant's cross-motion on this issue to be so routine to warrant consideration of the motion without affording the parties the opportunity for oral argument. R. 5:5-4.
The order granting counsel fees to defendant is vacated and the matter remanded for further proceedings consistent with this opinion.
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